Confidentiality after death: Please read the case examples and answer the following questions. Example 1: After the deaths of Nicole Brown Simpson and Ron Goldman (see: Hunt, 1999) Susan J. Forward, a clinical social worker who had held two sessions with Ms. Simpson in 1992, made unsolicited disclosures regarding her deceased former client. Ms. Forward commented in public that Ms. Simpson had allegedly reported experiencing abuse at the hands of O. J. Simpson. The California Board of Behavioral Science Examiners subsequently barred Ms. Forward from seeing patients for 90 days and placed her on three years’ probation.
In announcing the decision Deputy Attorney General, Anne L. Mendoza, who represented the board commented, “Therapy is based on privacy and secrecy, and a breach of confidentiality destroys the therapeutic relationship” (Associated Press, 1995). Ms. Mendoza also noted that Ms. Forward, had falsely represented herself as a psychologist in television interviews. Ms. Forward later asserted that she had not violated patient confidentiality because the patient was dead, but had agreed not to appeal the board’s decision in order to avoid a costly legal fight.
Example 2: Author Diane Middlebrook set out to write a biography of thendeceased Pulitzer Prize winning poet Anne Sexton with the permission of Sexton’s family (Middlebrook, 1991). Martin Orne, M. D. , Ph. D. served as Sexton’s psychotherapist for the last years of her life. At Sexton’s request, Dr. Orne had tape recorded the sessions so that Sexton, who had a history of alcohol abuse and memory problems, could listen to them as she wished. Dr. Orne had not destroyed the tapes and Ms. Middlebrook sought access to them to assist in her writing.
Linda Gray Sexton, the poet’s daughter and executrix of her literary estate, granted permission, and Dr. Orne released the tapes as requested. Dr. Orne’s release of the audiotapes caused considerable debate within the profession, despite authorized release (Burke, 1995; Chodoff, 1992; Goldstein, 1992; Joseph, 1992; Rosenbaum, 1994). Unlike the Simpson and Foster cases, the Sexton case involved approval of release of the audio records by a family member with full legal authority to grant permission. Dr. Orne was not sanctioned in any way for the release of the tapes. 3 1. Please explain which ethical codes are relevant to the preceding cases.
Be specific. B. 1. b. Respect for Privacy Counselors respect client rights to privacy. Counselors solicit private information from clients only when it is beneficial to the counseling process. Ms. Forward violated Nicole Simpson’s privacy by divulging her private information to others. Nicole Simpson was deceased; therefore it was not beneficial to the counseling process. In this same way, Dr. Orne was in violation. B. 3. c. Confidential Settings Counselors discuss confidential information only in settings in which they can reasonably ensure client privacy. Ms. Forward violated this by divulging information to the public and the press.
I believe that Dr. Orne was in violation by granting access to an author who would publicly display confidential information about his client. B. 3. f. Deceased Clients Counselors protect the confidentiality of deceased clients, consistent with legal requirements and agency or setting policies. Ms. Forward was again in violation of this code because there was no legal requirement for her to divulge Nicole Simpson’s information. I believe that Dr. Orne was in violation in the same way because he was under no obligation to grant access to his client’s confidential information. 2.
Do you agree with the outcomes of the preceding cases? Why or why not? I agree with the outcome in the Simpson case. I believe it was right that Mrs. Forward be barred and put on probation. The code of ethics clearly disallows such disclosure. Information revealed by the client in the process of therapy should be confidential. Neither the fact that they are in therapy nor the details of their therapy should be revealed without their written permission. Information concerning the professional relationship of the client and therapist should only be released after the client has signed a release form.
The therapist should always act so as to protect the privacy of the client even if the client releases the therapist in writing to share information about them. However, in the Simpson case, Ms. Forward held information that could have possibly aided in the murder of Nicole Simpson, but she violated her privacy by going to the press. I believe that she should have told the authorities instead of making it public knowledge. It seems that by going to the press she was seeking publicity. In the case of Dr. Orne, I do not agree with the outcome because he did not receive some sort of punishment.
Even though Linda Sexton, the daughter and the executrix of Ms. Sexton’s literary estate, requested access to her counseling records, Dr. Orne was under no obligation to 4 grant access. He should have waited on a court order before releasing the tapes and records. I believe that he violated the deceased Ms. Sexton’s privacy. 3. Do you believe that confidentiality should continue after death? Why or why not? I believe that it depends on the situation. I believe that a therapist should not release any information unless they are ordered to do so by a court of law.
If the therapist knows information that may help in a court case, such as the Simpson case, I believe that the clinician should inform the proper authorities. Ethical code B. 2. a Danger and Legal Requirements states: “the general requirement that counselors keep information confidential does not apply when disclosure is required to protect clients or identified others from serious and foreseeable harm or when legal requirements demand that confidential information must be revealed. Counselors consult with other professionals when in doubt as to the validity of an exception. Additional onsiderations apply when addressing end-of-life issues. ” I believe that under this code the clinician is required to inform proper authorities. I believe that Ms. Forward was in violation only because she went to the press. However in all other cases, I believe that the right to privacy is of fundamental importance. The law is designed to protect us against the loss of dignity that may result from exposure of intimate details of our private lives. That protection doesn’t simply evaporate with death. Only the patient has the power to release the physician from his duty of secrecy.
Duty to Warn: Please read the case examples and answer the following questions. Example 1: In the fall of 1969, Prosenjit Poddar, a citizen of India and naval architecture student at the University of California’s Berkeley campus, shot and stabbed to death Tatiana Tarasoff, a young woman who had spurned his affections. Poddar had sought psychotherapy from Dr. Moore, psychologist at the university’s student health facility, and Dr. Moore had concluded that Poddar posed a significant danger. This conclusion stemmed from an assessment of Poddar’s pathological attachment to Tarasoff and evidence that he intended to purchase a gun.
After consultation with appropriate colleagues at the student health facility, Dr. Moore notified police both orally and in writing that he feared Poddar posed a danger to Tarasoff. He requested that the police take Poddar to a facility hospitalization and an evaluation under California’s civil commitment statutes. The police allegedly interrogated Poddar and found him rational. They concluded that he did not really pose a danger and secured a promise that he 5 would stay away from Ms. Tarasoff. After his release by the police, Poddar understandably never returned for further psychotherapy, and two months later stabbed Tarasoff to death.
Subsequently, Ms. Tarasoff’s parents sued the regents of the University of California, the student health center staff members involved, and the police. Both trial and appeals courts initially dismissed the complaint, holding that, despite the tragedy, no legal basis for the claim existed under California law. The Tarasoff family appealed to the Supreme Court of California, asserting that the defendants had a duty to warn Ms. Tarasoff or her family of the danger, and that they should have persisted to ultimately ensure his confinement.
In a 1974 ruling, the court held that the therapists, indeed, had a duty to warn Ms. Tarasoff. When the defendants and several amici (i. e. , organizations trying to advise the court by filing amicus curiae, or “friend of the court,” briefs) petitioned for a rehearing, the court took the unusual step of granting one. In their second ruling (Tarasoff v. Board of Regents, 1976), the court released the police from liability without explanation and more broadly formulated the obligations of therapists, imposing a duty to use reasonable care to protect third parties against dangers posed by a patient.
Although the influence of the decision outside of California was not immediately clear, the issue of whether mental health professionals must be police or protectors or otherwise have a “duty to protect” rapidly became a national concern (see, e. g. , Bersoff, 1976; Leonard, 1977; Paul, 1977; VandeCreek and Knapp 2001; Quattrocchi and Schopp 2005). A former president of the APA (Siegel, 1979) even argued that if Poddar’s psychologist had accepted the absolute and inviolate confidentiality position, Poddar could have remained in psychotherapy and never harmed Tatiana Tarasoff.
Siegel believed the therapist “betrayed” his client asserting that, if the psychologist had not considered Poddar “dangerous,” no liability for “failure to warn” would have developed. This claim may have some validity; however, many therapists would argue the need to protect the public welfare via direct action. From both legal and ethical perspectives, a key test of responsibility remains whether therapists knew or should have known (in a professional capacity) of the client’s dangerousness. No single ethically correct answer will apply in all such cases, but the therapists must also consider their potential obligations.
Perhaps the ultimate irony of the Tarasoff case in terms of outcome involves what happened to Mr. Poddar. His original conviction for second degree murder was reversed because the judge had failed to give adequate instructions to the jury concerning the defense of “diminished capacity” (People v. Poddar, 1974). He was convicted of voluntary manslaughter and confined to the Vacaville medical facility in California and has since won release from confinement and went back to India and claims to be happily married. (Stone, 1976).
A variety of decisions by courts outside California since Tarasoff have dealt with the duty of therapists to warn or protect potential victims of violence at the hands of their patients (Knapp & VandeCreek, 2000; Truscott, 1993; VandeCreek & Knapp, 1993, 2001; Weisner, 2006; Yufik, 2005). The cases are both fascinating and troubling from the ethical standpoint. We have not disguised or synthesized examples in the next several cases, but rather draw from public legal records that form a portion of the continually growing case law on the duty to warn. 6
The cases themselves do not necessarily bespeak ethical misconduct. Rather, we cite them here to guide readers regarding legal cases that interface with the general principle of confidentiality. Example 2: Dr. Shaw, a dentist, participated in a therapy group with Mr. and Mrs. Moe Billian. Shaw became romantically involved with Mrs. Billian, only to be discovered one morning at 2:00 A. M. in bed with her by Mr. Billian, who had broken into Shaw’s apartment. On finding his wife in bed nude with Dr. Shaw, Mr. Billian shot at Shaw five times, but did not kill him. Dr.
Shaw sued the psychiatric team in charge of the group therapy program because of the team’s alleged negligence in not warning him that Mr. Billian’s “unstable and violent condition” presented a “foreseeable and immediate danger” to him (Shaw v. Glickman, 1980). In this case, the Maryland courts held that, although the therapists knew Mr. Billian carried a handgun, they could not necessarily have inferred that Billian might have had a propensity to invoke the “old Solon law” (i. e. , a law stating that shooting the wife’s lover could constitute justifiable homicide) and may not even have known that Billian harbored any animosity toward Dr.
Shaw. The court also noted, however, that, even if the team had this information, they would have violated Maryland law had they disclosed it. 1. Please explain which ethical codes are relevant to the preceding cases. Be specific. B. 2. a Danger and Legal Requirements the general requirement that counselors keep information confidential does not apply when disclosure is required to protect clients or identified others from serious and foreseeable harm or when legal requirements demand that confidential information must be revealed. Counselors consult with other professionals when in doubt as to the validity of an exception.
Additional considerations apply when addressing end-of-life issues. Under this code, Dr. Moore was obligated to inform Ms. Tarasoff of imminent danger but failed to do so. 2. Do you agree with the outcomes of the preceding cases? Why or why not? I agree with the outcomes of both of the cases. In the case of Dr. Moore, I believe that a mental health professional has a duty not only to the patient, but also to individuals who are specifically threatened by the patient. Code B. 2. a states that counselors are required to protect not only the client, but “identified others” as well.
Therefore, I believe that he was in violation. I also agree with the outcome of the Dr. Shaw case. I do not believe that the psychiatric team was responsible for the shooting of Dr. Shaw. The psychiatric team could not possibly have known of the doctor’s affair with Mr. Billian’s wife and therefore would 7 not have found it necessary to warn Dr. Shaw that Mr. Billian carried a handgun. The case against the psychiatric team is unfounded. 3. When do you believe therapists should have a duty to warn? When do you believe they do not have a duty to warn?
I believe that when a therapist is aware of imminent danger to the client or to another individual, they have a duty to warn the third party or the correct authorities. Efforts to protect third parties from a client’s violent behavior may involve having to breach a confidential relationship. I believe that it is important to keep in mind that a violation of confidentiality should only be considered under circumstances of possible serious physical harm or death. However, if the risk is extremely low and the potential damage is slight, then the therapist should consider other alternatives.
